Complainant

Respondent

Parties

Julie Pamela McGinley

Smyths Toys Superstores

Representatives

Tony Feeney                                           Fergus A Feeney and Co. Solicitors

Shane MacSweeney                       MacSweeney & Company Solicitors  Ann Naughton (in house legal)  

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00042192-001

28/01/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was fully represented. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 4th of April 2022. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was unlawfully discriminated against as a member of the travelling community when she was stopped in a shop having already paid for goods.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent had representation at this hearing. The Respondent provided me with a written submission dated March 2022. CCTV footage was made available. I have additionally heard from a number of witnesses for the Respondent. All evidence was heard following an Affirmation. The Respondent witnesses were cross examined.

The Respondent raised a preliminary issue.

The Respondent rejects that there has been any discrimination and has suggested that the Complainant overreacted to an honest and unintentional mistake made by an individual trying to be helpful. I am satisfied that the Respondent retailer is providing a service to the public.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this two-day hearing.  The parties have asked that I consider a preliminary issue concerning the Complainant’s right to bring this case in the first instance. If the Complainant is successful, I can proceed to the substantive case.

Preliminary Issue

At the outset, the Respondent’s Solicitor put up a preliminary argument concerning the sequencing obligations as set out in the Equal Status Act.

The incident complained of occurred on the 1st of December 2020.

The Act states at Section 21(2) that

“Before seeking redress under this section, the complainant-

(a)   Shall within 2 months after the prohibited conduct is alleged to have occurred….notify the respondent in writing of –

1 The nature of the allegations

2 The complainant’s intention …to seek redress under this Act”..

It is clear therefore that the Complainant was under an obligation to write to the Respondent  within two months of the 1st of December 2020 setting out how she says she was treated unlawfully by them, their servants or agents. I note that the Complainant did indeed fill out the ES1 form on the 28th of January 2021.

Section 21(4) provides that-

“The Director of the workplace relations Commission .. shall not investigate a case ..unless the Director .. is satisfied either that the Respondent has replied to the notification or that at least one month has elapsed after it was sent to the Respondent”

The Complainant issued her Workplace Relations Complaint Form on the 28th of January 2021 which is the same date that the ES1 Form was dispatched. It is clear therefore that the Complainant did not wait for the Respondent to reply or the elapsing of one month before issuing a complaint to the WRC capable of being investigated by the Director/WRC. As a matter of practicality, of course, no investigation is conducted until the hearing of this matter as all interim steps are designed to be administrative only.

The Respondent submits that this is fatal to the Complainant’s claim as she has not allowed the appropriate time to lapse or did not wait for the reply (whichever came first). Instead, she went straight- through her Solicitor- to issue her complaint.

The Complainant notes that the Respondent did reply to the ES1 form in the usual way on the 23rd of February 2021 and that response operated to perfect the procedural requirements set down in S21(4) of the Act.

In considering the issue raised, I am particularly drawn to the wisdom of M. Justice O’Malley in the case of  G  -v-  The Department of Social Welfare [2015] IEHC 419 in which Ms. Justice O’Malley noted that:-

“Having regard to the objectives of the Act, it must be acknowledged to be a remedial statute. It follows that it must be liberally construed”

The Judge confirmed Dodd’s Statutory Interpretation in Ireland (2008) that:

“Remedial social statues and legislation of a paternal character favour a purposive interpretation and are said to be construed as widely and liberally as can be fairly done within the constitutional limits of the Courts interpretive role.”

The Equal Status Act 2000 – 2011 she said

“…is intended to cover a broad range of human life and activity, and that it’s overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principle applicable to remedial statutes, it should be construed widely and liberally.”

In the circumstances I believe I am bound to construe the seemingly mandatory sequencing set out in the Act in as liberal a way as possible in order that any injustice be avoided. I am therefore satisfied that the Complainant is entitled to make her case under the Equal Status Act 2000. These are procedural steps created for the convenience of the parties and time limitations should not be construes as rigidly as, for example, the time limit for bringing a claim at all.

Substantive Issue

The Complainant gave evidence on her own behalf and having made the appropriate affirmation. The Complainant described a trip to the Respondent toy shop in Athlone. This was in early December 2020, and the Complainant was getting on top of her Christmas shopping. The Complainant had purchased her items at what I perceive to be the customer Services desk which is set apart from the four or five tills set closer to the exit.

The Complainant was making her way back towards the exit with her (unbagged) purchases in her arms. She says she slowed down as she was eying up some merchandise she had not spotted earlier and then quickened her pace again. The Complainant says she was stopped by a security guard at the exit. The Complainant says the Security Guard gestured her back to the tills and suggested she could go back there and pay for the goods.

The Complainant believed the clear implication was that she was trying to leave the shop without paying for the toys and that she was stopped in this way because she was a member of the travelling community. She says no one else was or would be stopped in such a way and that the fact of her being a member of the travelling community was clearly identifiable in her presentation. The Complainant says she was very upset at the time.

I was shown CCTV footage. The Complainant had seen the CCTV footage of the interaction between herself and the Security Guard and she confirmed that as she was heading towards the door none of the tills were manned and that as part of her interaction the Security Guard he had also called on a member of staff to return to the tills to deal with the Complainant as a customer. It was put to the Complainant that the Security Guard assumed that the Complainant was intending to purchase the goods in her arms and was potentially still shopping – as evidenced by her slowing down to look at something on the shelves. It was suggested that the Security Guard assumed she was looking for assistance as she was approaching an empty row of tills. It was further put to the Complainant that the Security Guard had not seen that she had purchased goods at the Customer Service desk which was not in his direct line of vision. The Respondent suggested that It should be accepted that the Security Guard had made an honest mistake and that the Store Manger had immediately confirmed that the goods had been paid for.

The Complainant was adamant that she was stopped because she was a member of the travelling community, and that this fact was obvious to anyone as she “stands out”.

The Complainant conceded that the Security Guard was not known to her, nor could she have been known to him. It was put to her that the Security Guard who was from Pakistan though living here for one year would not have been in a position to identify the Complainant as being from any particular ethnic or social background.

The Security Guard gave evidence (on Affirmation) on behalf of the Respondent. He said that he had stepped forward to be of assistance. It was put to him that he did not offer assistance but instead told the customer to go back and pay. He said that it was late in the evening and the staff numbers had dropped off and he could see her approaching the till area where there was nobody situate. He waived at a staff member (who was then stacking shelves) to go to the tills and simultaneously waived the Complainant towards the tills too. This double movement was clear identifiable to me in the CCTV footage. It became very clear very fast that the Complainant had already paid and that she was not too happy about having been stopped. The Security Guard said that his training was not to stop anyone confrontationally unless absolutely sure and not to do it until a customer had moved outside the shop. He was not casting aspersions.

Most importantly the Security Guard stated that he would have had no knowledge of who might or might not have been a member of the travelling community and how such a person might present in terms of looks and demeanor. As far as he is concerned everyone looks “European” over here.

The store Manager gave evidence about her involvement after the interaction between the Complainant and the Security Guard. Clearly the Complainant was upset by the perceived slight.

I do have sympathy for the Complainant who presented as thoughtful and sincere. She believed she had been identified as someone who might steal simply because of the way she looked. However, I am satisfied that this particular Respondent employee had made no assumption and was honest in his belief that he was acting helpfully within his Employer’s premises.

The Complainant has failed to establish a Prima Facie case from which I can draw an inference of discrimination.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00042192-001 – The Complaint fails as the Complainant failed to establish that the Respondent, through it’s employee, has engaged in prohibited conduct.